IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TETAMENTARY SUIT NO.36 OF 2002
IN
TESTAMENTARY PETITION NO.602 OF 2001
Bapulal Maganlal Contractor ... Deceased
Umakant Bapulal Contractor & Anr. ... Plaintiffs
Vs.
Nitin Bapulal Contractor ... Defendant
Mr. Atit Shukla a/w. Ms. Neena Kapadia i/b Pandya
Gandhi & Co. for Plaintiffs
Mr. K. K. Kurup for Defendant
ORDER RESERVED ON 18TH JULY 2009
ORDER PRONOUNCED ON 18TH NOVEMBER 2009
CORAM : S. J. KATHAWALLA, J.
DATE : 18TH NOVEMBER, 2009
JUDGMENT
The Testamentary Petition No.602 of 2001
was filed on 11th April, 2001 by Umakant Bapulal
Contractor and Nalin Bapulal Contractor for grant
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of probate in respect of the Last Will and
Testament dated 11th February, 1997 of the deceased
Shri Bapulal Maganlal Contractor (hereinafter
referred to as ‘the said Will’), who expired on 20th
June, 2000. The Executors named in the said Will
are the two sons of the deceased Umakant and Nalin
i.e. the Plaintiffs/Petitioners herein. A copy of
the said Will which is in English language is
annexed as Exhibit-B to the Petition.
ig Along with
the Petition the Plaintiffs/Petitioners filed an
Affidavit dated 5th February, 2002 of Mr. Narendran
Madhavan Menon, one of the attesting witnesses to
the said Will. Along with the said Petition the
Plaintiffs/Petitioners also filed a Joint Consent
Affidavit dated 11th April, 2001 of Smt. Parvatiben
Bapulal Contractor (wife of the deceased) and Smt.
Jayshreeben P. Khambhati (married daughter of the
deceased) and also a Consent Affidavit dated 13th
August, 2001 of Smt. Sushila I. Contractor (married
daughter of the deceased). By the said Affidavits,
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the wife of the deceased ‘Parvatiben’ and his
married daughters ‘Jayshree’ and ‘Sushila’ deposed
that the said Will was the last Will of the
deceased. The same was genuine and valid and the
deponents had no objection if the Probate in
respect of the said Will was issued to the
Plaintiffs/Petitioners, and they consent for the
same.
2. In the said
ig Petition No. 602/2001, the
Defendant who is admittedly one of the son’s of the
deceased and brother of the Plaintiffs/Petitioners
filed a Caveat dated 3rd May, 2002 wherein the
Defendant contended that he is not aware of any
Will prepared by his father during his lifetime and
that he has received a citation issued by the High
Court inter alia informing that the Petition has
been filed by his two brothers i.e. the
Plaintiffs/Petitioners herein, for grant of Probate
in respect of the said Will allegedly left by the
deceased. Since he has not been served with a copy
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of the said Will and the Petition, it is not
possible for him to give para-wise reply to the
alleged Will or the Petition. He therefore
reserved his right to file a detailed reply after
receiving a copy of the alleged Will. The
Defendant without allegedly not having seen the
Will submitted :- “my father was paralysed since __
years and bedridden before his death and was not
able to sign anything. ig I say and submit that the
said Will was not executed by my father.” Again,
without having allegedly seen the said Will, and
the Defendant having reserved his right to file a
detailed Affidavit, nonetheless stated in his
Affidavit dated 3rd May 2002 that the Will allegedly
left by the deceased is false and fabricated. In
fact on 18th July, 2009 when the arguments in the
Suit commenced, it was submitted by the Learned
Advocate appearing for the Defendant before this
Court that the Defendant is not contending that the
deceased was suffering from paralysis as stated in
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the Affidavit in Support of the Caveat. This Court
has noted the fact that the Defendant is unable to
speak and understand English. His Affidavit of
Examination-in-Chief dated 20th April, 2009 is
interpreted and explained to him by the Office of
the Translator, High Court and the questions put to
him during his examination and cross-examination
were either put to him directly in Gujarati or were
put to him in English and thereafter translated in
Gujarati. Despite this, the Affidavit of the
Defendant in support of the Caveat dated 3rd May,
2002 nowhere states that the same has been read out
and/or explained/interpreted to the Defendant in
Gujarati. The contents of the Affidavit dated 3rd
May, 2002 are not confirmed/reiterated by the
Defendant in his Examination–in-Chief. In view of
the aforesaid Caveat filed by the Defendant, the
Petition was converted into a Suit.
3. Though the Defendant had stated in the
Affidavit in support of the Caveat that he has not
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even seen the said Will propounded by the
Plaintiffs/Petitioners and that he will be filing a
detailed Affidavit after receiving a copy of the
said Will, no such Affidavit was filed by the
Defendant at any time thereafter. Even when the
matter was placed for framing of the Issues none
appeared for the Defendant and this Court proceeded
to frame the following Issue in the absence of the
Defendant:- “Whether the Plaintiffs prove that the
Will dated 11th February 1997 is a Will duly
executed by the Testator in accordance with Law.”
4. The Plaintiffs/Petitioners have examined
both the attesting witnesses to the said Will i.e.
Mr. Narendran Madhavan Menon (P.W.1) and Dr. Pravin
L. Shah (P.W.2). The Defendant has examined
himself as a Witness (D.W.1) and his mother
Pravatiben B. Contractor as witness (D.W.2).
REASONS
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5. As stated hereinabove the
Plaintiffs /Petitioners have claimed that the said
Will is the Last Will left by the deceased. The
deceased had left the following persons surviving
as his only heirs and next of kin according to
Hindu Law by which he was governed at the time of
his death :-
1. Smt. Parvatiben Bapulal Contractor
(Parvatiben) – Wife
2. Smt. Jayshreeben P. Khambhati
(Jayshreeben)
– Married
Daughter
3. Mr. Nitin Bapulal Contractor – Son
(Defendant)
4. Mr.Umakant Bapulal Contractor – Son
(Plaintiff No.1)
5. Mr. Nalin Bapulal Contractor – Son
(Plaintiff No.2)
6. Smt. Sushila I. Contractor – Marriedd
(Sushilaben) Daughter
6. Shri Narendran Menon (P.W.1) has in his
Affidavit of Examination-in-Chief dated 29th
January, 2009 stated that between the years 1994
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and 2002 he was staying in 401, “Harmony”, 4th Floor
Kandivali (West), Mumbai. In the same building,
the deceased Bapulal Maganlal Contractor was
residing in Flat No.304 on the 3rd Floor. On 11th
February, 1997 P.W.1 was present at the residence
of the deceased alongwith one Dr. Praveen Shah
(P.W.2)a Medical Practitioner who has his
dispensary at Shop No.2, Damodarwadi, Ashok Nagar,
Kandivili (East), Mumbai. ig At that time and in both
their presence, the deceased duly executed his Last
Will and Testament dated 11th February, 1997. The
said Dr. Shah (P.W.2) and P.W.1 at the request of
the deceased and in the presence of the deceased
and each other subscribed their respective
signatures to the Last Will and Testament of the
deceased as witnesses to the signature of the
deceased.
7. In his Examination-in-Chief before this
Court on 26th February, 2009 P.W.1 confirmed the
contents of his Affidavits dated 5th February, 2002
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and 29th January, 2009. P.W.1 was shown the original
Will dated 11th February, 1997 when he deposed that
he has signed the document as a witness and was
aware that he was witnessing the Will.
He has deposed that the deceased put his signature
on the said Will in his presence and in the
presence of Dr. P. L. Shah (P.W.2) who has also
witnessed the Will. The original Will was
thereafter taken on record and marked as Exhibit
P-1.
8. P.W.1 in his cross-examination admitted that he
knew the deceased since about 11 years prior to his
death. During all the 11 years he was staying in
401, “Harmony”, on the 4th Floor, at Kandivali (E),
Mumbai. The deceased was staying in Flat No.304 in
the same building, i.e. “Harmony” and Mr. Nalin B.
Contractor (Plaintiff No.2) was also residing in
Flat No.101 of the same building. P.W.1 also stated
in his cross-examination that he knows both the
Plaintiffs, but he does not know the Defendant.
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Before attesting the said Will of the deceased as a
Witness he had gone through the Will. At the time
of execution of the Will, the deceased, Dr. Pravin
Shah (P.W.2) and P.W.1 were the only persons
present. At the time of executing/signing of the
said Will the deceased was in good health. P.W.1
has stated in his cross-examination that prior to
his visit to the house of the deceased for
witnessing his Will, he had visited the house of
the deceased on one or two occasions. However, he
does not recollect when he visited the house of the
deceased earlier. He has admitted that he has also
witnessed the previous Will of the deceased which
was executed sometime in the year 1995. He has
stated that the deceased had signed the Last Page
of the said Will of 1997 in his presence and had
also put his initials on the other pages of the
said Will in his presence. In his cross-
examination the Learned Advocate for the Defendant
showed P.W.1 the signature of the deceased on both
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the Wills i.e. the Will of 1997 and the Will of
1995 and suggested to P.W.1 that the second Will of
1997 was not signed by the deceased, to which P.W.1
answered “It is not true to say that the second
Will of 1997 was not signed by the deceased.”
9. P.W.1 has in his cross-examination, inter
alia denied the following suggestions put to him in
his cross-examination by stating (1) that “it is
incorrect to say that I was close to the son of
Bapulal Contractor and not Bapulal Contractor.” (2)
that “it is incorrect to say that he was mentally
unwell prior to 5 years of his death.” (3) that “it
is incorrect to say that I have signed the Will at
the instance of the son of Bapulal Contractor or
that I have never seen Bapulal Contractor putting
his signature on the Will.” (4) that “it is not
correct that I have come to court to give false
evidence at the instance of the son of Bapulal
Contractor.”
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10. P.W.2 Dr. P. L. Shah filed his Affidavit
of examination-in-chief dated 12th March, 2009
wherein he has deposed that he is a Medical
Practitioner since the year 1983/84. The deceased
was residing at 304 ‘Harmony’ which is very close
to his dispensary. The deceased was his patient for
a long time. The deceased was keeping good health
and use to consult him only for minor ailments.
ig He
personally knew the deceased for six to seven
years. The remaining facts as regards the
attestation of the said Will in the Affidavit of
examination-in-chief of Dr. P. L. Shah (P.W.2) are
similar to those set out in the Affidavit of
examination-in-chief of P.W.1. In his examination-
in-chief conducted on 12th March, 2009 before this
Court, Dr. Shah confirmed the contents of his
Affidavit of Examination-in-Chief dated 12-3-2009
and upon being shown the original Will (Exhibit
P-1) admitted that he had signed the document as a
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witness and at the time of signing the same was
aware that he was witnessing the Will of the
deceased. P.W.2 has deposed before this Court that
the signature on the right hand side on Page 5, of
Exh. P-1, above the signature of the Witness is
that of the deceased which was put by the deceased
in the presence of P.W.2 and underneath his
signature the deceased in his own hand wrote the
date 11/2/97 in the presence of P.W.2. After the
deceased put his signature on the said
document/will in the presence of P.W.1 and P.W.2
both P.W.1 and P.W.2 witnessed/signed the Will in
the presence of the deceased and in the presence of
each other. Below the signature of P.W.2, P.W.2
has handwritten the date 11/2/97. Apart from the
signature of the deceased on Page 5, the deceased
had put his initials on each page of the
document/will in the presence of P.W.2.
11. In his cross-examination, P.W.2 has stated
that he knew the deceased about three to four years
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prior to witnessing the said Will. The deceased
himself had called P.W.2 at his residence to
witness his Will. The deceased had called up P.W.2
in the morning of 11/2/1997. However, P.W.2
informed the deceased that he would be visiting the
residence of the deceased in the evening, which he
did at around 7/7.30 p.m. When P.W.2 went to the
residence of the deceased, the deceased was alone.
Thereafter Mr. Menon
ig (P.W.1) also came to the
residence of the deceased. P.W.2 in his cross-
examination has further stated that he knew the
deceased since he was visiting his dispensary as
his patient. P.W.2 has stated that he maintains
the medical records of his patients for a maximum
period of six to eight years and he does not know
whether he still has the medical records of the
deceased. P.W.2 has stated that when he visited
the deceased on 11th February, 1997 the physical and
mental condition of the deceased was absolutely
normal. P.W.2 has further stated that apart from
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the deceased Bapulal being his patient, his son
Nalin Contractor was also his patient and had
consulted him on some occasions and on very rare
occasions the wife of the deceased had also
consulted him as a patient. He has also stated
that it would be correct to say that on most of the
occasions when the deceased visited P.W.2 at his
dispensary his wife had accompanied him. In a
question put to P.W.2 whether
ig the deceased only
knew Gujarati or other languages also, P.W.2 stated
that in his presence the deceased only spoke in
Gujarati. P.W.2 has stated that the Will was not
explained to the deceased in Gujarati in the
presence of P.W.2 and he is not aware as to who had
prepared the said Will. He had only signed the
document as a witness without going through the
Will. P.W.2 has categorically stated in his cross
examination that Nalin Contractor the son of the
deceased is not a friend but a patient of P.W.2.
P.W.2 has inter alia denied the suggestion put to
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him in his cross-examination by stating that “it is
incorrect to say that the deceased Bapulal had not
signed the 1995 Will or the 1997 Will or that I am
giving false evidence at the instance of his sons.”
12. After the evidence of P.W.1 and P.W.2 was
concluded, a joint Affidavit dated 26th March, 2009
of Examination-in-Chief was filed by the Defendant
and Smt. Parvati Babulal Contractor wife of the
deceased. When it was pointed out to the Learned
Advocate for the Defendant that Parvatiben had
already filed a Consent Affidavit as far back as on
11th April, 2001 admitting that the said Will is
genuine and valid and she has no objection to
Probate being granted to the Plaintiffs/Petitioners
in respect of the said Will, the Learned Advocate
for the Defendant informed this Court that he will
not rely on the said Joint Affidavit of evidence of
Parvatiben and the Defendant dated 26th March, 2009
but will file a separate Affidavit of evidence of
the Defendant and shall take appropriate steps to
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have the Consent Affidavit of Parvatiben dated 11th
April, 2001 set aside.
13. Thereafter an Affidavit of Examination-in-
Chief of the Defendant dated 20th April, 2009 was
filed before this Court. In the said Affidavit
the Defendant, who had alleged in his Affidavit in
Support of the Caveat dated 3rd May, 2002 that his
father was paralysed and bedridden before his death
and was not able to sign anything, now, after a
span of 7 years changed his story to allege that
his father was not in a position to sign at all for
the last 5 years prior to his death since his hands
were “shivering” and he had a “failed memory”. The
Defendant has further deposed that the properties
mentioned in the said Will are not the self
acquired or the exclusive properties of the
deceased and therefore the said Will is itself bad
in law and cannot be probated at all. It is alleged
that the said Will is clearly a manipulation by the
Plaintiffs to the detriment of others. It is
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deposed by the Defendant that in the Will of 1995
and 1997 it is stated that it was explained in
Gujarati language to the maker of the Will.
However, no evidence is on record to show that the
Will was explained to the maker by anybody. The
Deponent has deposed that as regards the Consent
Affidavit of Parvatiben dated 3rd April, 2001,
Parvatiben would be taking out appropriate
proceedings to defend herself.
ig The Defendant has
alleged that the attesting witnesses are good
friends of the Plaintiffs who wanted to grab the
entire premises.
14. The Defendant in his cross-examination has
admitted that upto 1993 the deceased, his wife
Parvatiben, the Plaintiffs and the Defendant were
residing at Ganga Niwas at Khar which was a joint
family property. After 1993 the deceased shifted
to Kandivali along with Parvatiben and brother,
Nalin Contractor (Plaintiff No.2). However, the
Defendant continued to reside at ‘Ganga Niwas’ at
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Khar. Though according to the Defendant, initially
there was no demarcation amongst the family members
and the entire property (Ganga Niwas) was treated
as one property, he has admitted that he has a
separate ration card of his immediate family and
has produced the same. He also admitted that a
separate room was given to him in ‘Ganga Niwas’,
since his wife was a pure vegetarian and his father
and other members use to eat non-vegetarian food
like eggs. He has admitted that in the year 1993
itself he filed a suit against his father being
Suit No.1328/1993 and his father filed a suit
against him being No.8010/1993 in the City Civil
Court Bombay. He has also admitted that his father
had filed a suit against him before this Court
being Suit No.4190/1994. He has further admitted
that M/s. Parvati Builders had filed a Suit against
him being Suit No.4510/1995 before this Court. He
has also admitted that there were complaints filed
with the police by his father as well as himself
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against one another. The Defendant has stated that
he use to meet his father on certain occasions
after 1993. He has stated that his mother and
sisters had informed him that their family doctor
was Dr. Nair. He has admitted that he had never
accompanied his father to any doctor. When asked
in his cross-examination on what basis the
Defendant was alleging that the attesting witnesses
viz. P.W.1 and P.W.2
ig are the friends of the
Plaintiffs, he has stated that when he visited his
father and mother he had seen them “loitering
together”. The Defendant, though specifically
asked to produce an original signature of his
father could not do so. Instead he produced the
Membership Card of Khar Gymkhana (Exhibit P-5)
which again does not bear the original signature of
the deceased. The Defendant has stated that both
the Wills of the deceased were read out to him in
the presence of his mother and three brothers by
one Mr. Ashwin Pandya approximately two years after
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the demise of the deceased. He has admitted that
Mr. Ashwin Pandya had also taken signatures after
verifying the facts that the Will was read out to
him and his brothers.
15. Thereafter a Notice of Motion being No.
72/2009 was taken out on behalf of Parvatiben by
the Advocate for the Defendant seeking withdrawal
of the Joint Affidavit dated 11th April 2001 filed
by Parvatiben jointly
ig with her married daughter
Jayshreeben in support of the Probate Petition,
and for allowing her to file her Affidavit of
Evidence in the above Suit and to contest the same.
It is pertinent to note that Jaysrheeben did not
seek withdrawal of the said Joint Affidavit. In
the Affidavit in Support dated 27th April, 2009 of
the Notice of Motion it is inter alia alleged that
the signature in the said Will is not of the
deceased and that it is unbelievable that the
deceased would Will away the properties to only two
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of his sons. The said Notice of Motion was disposed
of by the following order dated 18th June, 2009:-
“2. After hearing the parties at length, the
parties have agreed that the notice of motion be
disposed of by the following order :-
(i). The affidavit dated 11th April 2001
filed by Mrs. Parvati B. Contractor be treated as
withdrawn.
(ii). Mrs. Parvati
ig B. Contractor is not
desirous of contesting the Will by filing any
caveat and shall only be giving evidence in the
suit as a witness by the defendant Shri Nitin B.
Contractor. It is made clear that Mrs. Parvati B.
Contractor is not a party to the present
proceedings.
(iii). The allegations made in the Notice of
Motion against the plaintiff/petitioner are
withdrawn.
3. The evidence of Mrs. Parvati B. Contractor
tendered by Mr. Kurup, learned Advocate for
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the defendant – Shri Nitin B. Contractor is
taken on record. The cross-examination of
Mrs. Parvati B. Contractor is kept tomorrow at
10 a.m. since she is an elderly lady of 80
years of age and has to leave for Ahmedabad by
12.00 noon.
3. In view thereof, Notice of Motion stands
disposed of.”
16. In the Affidavit
ig of Examination-in-Chief
of Parvatiben (D.W.2) dated 19th June 2009, despite
having agreed to withdraw the allegations made
against the Plaintiffs/Petitioners as recorded in
the Order passed in the Notice of Motion No.
72/2009, Parvatiben once again repeated some of the
same allegations. Parvatiben alleged that the
Plaintiffs/Petitioners immediately after the demise
of their father drove her and the Defendant out of
Mumbai. She has alleged that the Plaintiffs became
very greedy and wanted to grab all the properties.
Therefore, they befriended some of the local people
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and came to this court with false documents. She
alleged that the signature of the deceased
appearing on the said Will is forged. What is
found in the said Will is the manipulation by the
Plaintiffs/Petitioners and it does not bear the
signature of the deceased. She has alleged that
her husband knew only Gujarati and he could not
have signed a Will which is made in English without
interpreting the same in Gujarati.
ig There is no
date on the said Will. The beneficiaries could not
have sold the properties since the court had not
granted probate on the said Will. She and the
Defendant are at the mercy of her daughters who
also supports the claim in the matter.
17. In her cross-examination Parvatiben (D.W.
2) in a question put by the Court to her as to why
she did not contest the said Will since 2002, first
stated that she had not stated anything against the
said Will earlier because her sons had already
disposed off the properties. She was therefore
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asked by the Court that in that event why was she
now alleging, after several years, that the said
Will was not genuine, to which D.W.2 answered that
she is now making statements against the
genuineness of the said Will because she is now
told that she will not get the share in Ganga Niwas
property. As regards her knowledge pertaining to
the said Will and its contents, she first stated
that she came toig know about the Will and its
contents only six months after the demise of the
deceased. She later changed her answer and stated
that she came to know about the contents of the
said Will approximately one year back. She
thereafter once again changed her answer to allege
that about two years back Advocate Mr. Wasawada who
was the Advocate of the deceased handed over a copy
of the said Will to her. Thereafter once again she
changed her answer to say that the said Will was
read out and explained to her by Mr. Ashwin Pandya
on 31-12-2000 (wrongly typed in the Notes of
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Evidence as 31-2-2000) at 11.30 a.m. D.W.2 was
confronted with a letter dated 30th May 2005 in
Gujarati language (Exh.P-6) signed by her in which
she has accepted that she has received Rs.
2,50,000/- being her 1/3rd share in the Kandivali
flat. In the said letter she has also acknowledged
that she is going to Ahmedabad taking with her,
fixed deposit receipts for a sum of Rs.1,35,000/-
standing in her name. ig She has further acknowledged
receiving a sum of Rs.40,000/- being the sale
proceeds of silver utensils which was to her
share. She further acknowledged having received
gold ornaments described therein apportioned as her
share and Rs.11,000/- approximately lying in her
Bank Account. D.W.2 admitted that the signature on
the said letter was hers and the entire contents
were true and correct. The said letter is marked
Exhibit P-6.
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18. The Learned Advocate appearing for the
Plaintiffs/Petitioners has submitted before this
Court that the following are the admitted facts :-
(i). After the demise of the deceased the
said Will was read out and explained
by Mr. Ashwin Pandya to Smt.
Parvatiben, the Plaintiffs and the
Defendant. Parvatiben i.e. D.W.2 has
further ig admitted that the said Will
was read out on 31-12-2000 at 11.30
a.m. i.e. approximately within 6
months from the demise of the
deceased;
(ii). On 11th April 2001 Parvatiben and her
daughter Jayshree filed a Joint
Affidavit before this Court wherein,
Parvatiben and Jayshree have stated
that the said Will dated 11-2-1997
referred to in the above Suit/Petition
and marked ‘Exhibit-B’ to the
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Suit/Petition is the last Will of thedeceased and they believe that the
said Will is genuine and validly
executed. The Plaintiffs/Petitioners
have filed the above Suit/Petition for
grant of Probate of the said Will and
that Parvatiben and Jayshree have no
objection whatsoever if the Probate of
the said
ig Will is granted to thePlaintiffs/Petitioners. The contents
of the said Affidavit have been
translated and interpreted to
Parvatiben by the Asst. Chief
Translator and Interpreter of this
Court. The other daughter of the
deceased and Parvatiben i.e.
Sushilaben also gave her Consent
Affidavit to the
Plaintiffs /Petitioners, the contents
of which are identical to the Joint
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Affidavit of Parvatiben and Jayshree;
(iii). The Defendant had filed a Suit in the
year 1993 against the deceased and the
deceased had filed suits against the
Defendant before this Court and in the
City Civil Court in Mumbai;
(iv). The deceased and the Defendant have
filed complaints and counter
complaints against each other with the
police authorities;
(v). Both the 1995 and the 1997 Wills
contain the following clauses as
paragraph Nos. 4 and 5 -
"4. My son Nitin is not at all in
good terms with me and he has, for
last more than 8 years, caused
harassment to me. My son Nitin has
filed false and frivolous suits
against me, claiming right, title and
interest in the said property at Khar.
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I do not desire to devise and bequeath
any of my movable or immoveable
properties to my said son Nitin.
5. My two daughters namely Jayshree and
Sushila are married and I have already
provided them with whatever moieties I
could and hence I do not desire to
devise and bequeath any of my movable
or immoveable
ig properties to my
daughters the said Jayshree and
Sushila.”;
(vi). In the year 2005 Parvatiben took her
1/3rd share in respect of Flat No.304
in building ‘Harmony’ and her share in
silver utensils and gold ornaments and
also took her fixed deposits and
amounts lying in her bank accounts and
went to Ahmedabad to reside with her
daughter of her own free will;
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19. The Learned Advocate appearing for the
Plaintiffs/Petitioners has submitted that both the
attesting witnesses i.e. P.W.1 and P.W.2 have
deposed that the deceased had signed/executed the
said Will in their presence and had initialed each
page in their presence and they too had put their
signatures on the said Will in the presence of the
deceased and in the presence of each other. Both
the witnesses have also deposed that the deceased
was physically as well as mentally stable on the
day of the execution of the said Will. It is
submitted that the Defendant has even in the cross-
examination of P.W.1 and P.W.2, not been successful
in establishing that the deceased had not executed
the said Will in the presence of P.W.1 and P.W.2 or
that the said Will has been manipulated by the
Plaintiffs/Petitioners. As regards the contention
of the Defendant namely that though it is written
in the Will that the same has been signed by the
deceased as his last Will after the same has been
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read over and explained to him and had been
admittedly perfectly understood and approved by the
deceased, no evidence has been produced to show
that the same was read out and explained to him, it
is countered by the Plaintiffs/Petitioners that the
Defendant who has challenged the said Will and who
is the eldest son of his father, the deceased, has
nowhere stated that his father did not understand
English. In fact
ig the Defendant in his cross-
examination dated 23rd April, 2009 at Page 4 (last
paragraph) has stated – “I do not know the
education qualification of my father, though I can
say that he was an educated man. I am not aware
whether he has studied in Gujarati or in English
medium.” It is further submitted by the
Plaintiffs/Petitioners that the evidence of
Parvatiben cannot be relied upon because the said
Parvatiben who has not challenged the said Will and
has withdrawn the allegations made in the Notice of
Motion No. 72 of 2009 cannot he heard to say that
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the said Will is not genuine or that the
Plaintiffs/Petitioners have fabricated or
manipulated the same out of greed. It is submitted
that on close scrutiny of the evidence of
Parvatiben (D.W.2) it would show that the entire
evidence is dishonest, tutored and given at the
instance of the Defendant (D.W.1) only to oblige
him. It is further submitted on behalf of the
Plaintiffs/Petitioners that the allegation on the
part of the Defendant that the P.W.1 and P.W.2 have
given evidence only because they are the friends of
the Plaintiffs/Petitioners is false and incorrect.
The Defendant has failed to produce any evidence in
support of the said contention except an answer
which is both false and foolish that he has so
alleged because he had seen them “loitering
together” when he visited the deceased and
Parvatiben at their Kandivali residence. The
Plaintiffs/Petitioners have further submitted that
the Defendant has questioned the capacity/ability
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of the testator to dispose off the property by way
of a Will, on an incorrect ground that the
properties which are sought to be disposed off by
way of the said Will are inherited properties and
hence are not self acquired properties of the
deceased. Relying on the decision of the Mysore
High Court in the case of D. S. Sriramaiah Shetty
vs. D. Kanthamma Reported in AIR 1971 Mysore 148,
it is submitted ig on behalf of the
Plaintiffs/Petitioners that if one challenges the
capacity/ability of the testator to dispose off the
property, his Caveat cannot be entertained and the
same deserves to be rejected in limine. The
Plaintiffs/Petitioners therefore submitted that
they have well and truly proved their case and the
Defendant has failed to prove otherwise.
20. The Learned Advocate appearing for the
Defendant has submitted that under the 1995 Will
the deceased had created certain life interest in
favour of his wife Parvatiben which rights have
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been taken away under the 1997 Will. The 1997 Will
is therefore manipulated by the
Plaintiffs /Petitioners. The date of the execution
of the Will is blank and the date put under the
signature of the deceased is also not put by the
deceased. It is submitted that no evidence is
produced on behalf of the Plaintiffs /Petitioners
that the said Will was explained to the deceased.
It is submitted that
ig the Plaintiffs/Petitioners
have failed to prove the execution of the said Will
and therefore the Plaintiffs/Petitioners are not
entitled to obtain a Probate of the said Will.
21. I have considered the pleadings, as well
as the evidence on record and the rival contentions
advanced by the Learned Advocates appearing for the
parties. I will first deal with the role played by
Parvatiben (D.W.2) or rather the role she was made
to play by the Defendant in the present
proceedings. The said Parvatiben as set out
hereinabove, initially in her Consent Affidavit
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dated 11th April 2001 filed jointly with her
daughter Jayshree before this Court deposed that
the said Will is a genuine Will and is validly
executed by the deceased. As can be seen from the
said Consent Affidavit itself, the same was
translated/interpreted to Parvatiben by the Asst.
Chief Translator and Interpreter of this Court. The
said Parvatiben never disputed the said Will in the
next 8 eight years but instead took her share in
respect of one of the flats as well as silver
utensils, gold ornaments, etc. and voluntarily left
for Ahmedabad to reside with her daughter,
Sushilaben, as can be seen from the document at
Exhibit P-6 the contents of which the said
Parvatiben has admitted before this Court to be
true and correct. It is only when the Defendant
had to file his Affidavit in the present
Suit/Petition that he filed a Joint Affidavit
before this Court wherein he and the said
Parvatiben questioned the genuineness and the
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validity of the said Will. When it was pointed out
to the Learned Advocate for the Defendant that the
said Parvatiben has already filed a Consent
Affidavit dated 11th April 2001 before this Court,
accepting the genuineness and validity of the said
Will and declaring that she has no objection
whatsoever if the probate in respect of the said
Will is granted to the Plaintiffs/Petitioners, the
Learned Advocate for the Defendant stated that he
will not rely on the joint Affidavit and he will
file a separate Affidavit of examination-in-chief
of the Defendant and will also take steps for
setting aside/withdrawal of Parvatiben’s Affidavit
dated 11th April, 2001. Thereafter, the Advocate for
the Defendant took out a Notice of Motion for
allowing Parvatiben to withdraw her Consent
Affidavit dated 11th April 2001 inter alia on the
grounds that the same was obtained by force/fraud
by the Plaintiffs / Petitioners. After the said
Notice of Motion was argued at some length before
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this Court, the said parties agreed that the
Affidavit dated 11th April 2001 filed by Parvatiben
be treated as withdrawn. Parvatiben agreed that
she is not desirous of contesting the said Will by
filing any Caveat and shall only be giving evidence
in the present Suit as the Defendant’s witness. It
was made clear that Parvatiben is not a party to
the present proceedings. The allegations made in
the Notice of Motion
ig by Parvatiben against the
Plaintiffs/Petitioners were also withdrawn.
Parvatiben thereafter filed her Affidavit of
Examination-in-Chief before this Court inter alia
repeating the allegations which she had withdrawn
on the earlier day and thereafter appeared as D.W.2
for cross-examination before this Court. As can be
seen from the cross-examination of Parvatiben, the
said Parvatiben was since inception making false
statements on oath. Though Parvatiben has stated
in her cross-examination that she has not signed
the Affidavit of the Examination-in-Chief at the
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instance of the Defendant but has signed the same
of her own free will, the same is inter alia belied
by the following questions and answers put to her
during her cross-examination :-
“Per Court – Why did you not contest the Will since
2002?
i. I had not said anything against the Will of
the deceased earlier because my sons had
already disposed of the properties.
(Per Court) In that event, why did you make an
affidavit today i.e. after several years, making
statement therein against the genuineness of the
Will of the said deceased?
A. Because I am now told that I will not get the
share in my Ganga Niwas property.
Q. When did you first come to know about the Will
and its contents?
A. I came to know about the Will and its contents
approximately six months after the demise of my
deceased husband.
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Q. If you were aware about the contents of the
Will, you were also aware that Ganga Niwas property
is not bequeathed to you?
A. I say that I was not aware of the contents of
the Will, I came to know of the contents of the
Will approximately one year back.
2. I now say that about 2 years back the
Advocate Mr. Wasawada, who was the Advocate of my
deceased husband, handed over a copy of the Will to
me.
[Attention of the witness is now drawn to the
writing on the folder in which the Will of the
deceased is kept and after recording that the Wills
were read out to parties, signatures are obtained
including the signature of the witness. (The entire
contents of the writing is read out and explained
to the witness in Gujarathi by the Translator)].
Q. Is this your signature?
A. Yes.
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3. I now say that the Will was read out and
explained by Mr. Ashwin Pandya to me on 31.2.2000
at 11.30 a.m.
Q. Do you still maintain you were not aware that
the Ganga Niwas property was not going to come to
you, until recently?
A. I cannot answer this.”
From the aforesaid evidence it can be seen that the
said Parvatiben first tried to explain that she had
not contested the said Will since the year 2002
because the Plaintiffs/Petitioners had already
disposed off the properties. Parvatiben on being
asked why after several years she now decided to
allege that the said Will is not genuine,
answered that she is now told that she will not get
the share in the Ganga Niwas property. On being
asked when she came to first know about the said
Will and its contents she admitted that she came to
know about the said Will and its contents
approximately six months after the demise of the
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deceased i.e. she came to know about the said Will
and its contents sometime in December 2000. It was
therefore put to Parvatiben that if she was aware
of the contents of the said Will, she was also
aware that the Ganga Niwas property was not
bequeathed to her. Thereupon the said Parvatiben
immediately changed her earlier stand and answered
that she came to know about the contents of the
said Will approximately a year ago.
ig She thereafter
again changed her answer and stated that about two
years back the Advocate of the deceased Mr.
Wasawada had handed over a copy of the said Will to
her. When the attention of Parvatiben was drawn to
the writing on the folder in which the said Will of
the deceased is kept where after recording that the
Wills were read out to the parties and signatures
were obtained including the signature of
Parvatiben, she admitted that the same was her
signature. She thereafter also admitted that the
said Will was read out and explained by Mr. Ashwin
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Pandya to her on 31.2.2000 at 11.30 a.m. (the date
31.2.2000 is an obvious mistake and same should
have been typed as 31.12.2000). After this
admission of Parvatiben, she was asked whether she
still maintained that she was not aware that the
Ganga Niwas property was not bequeathed to her,
until recently, she responded by saying “I cannot
answer this”. The aforestated evidence of
Parvatiben shows that she was conscious of the fact
she had no answer whatsoever to the question as to
why she did not contest the genuineness/validity of
the said Will till date. Parvatiben therefore as
can be seen from the above discussion of her
evidence, gave false and incorrect answers knowing
them to be so, until she had no alternative left
but to admit that she was in fact aware of the said
Will as well as its contents since 31.12.2000.
22. Parvatiben has alleged in her Examination-
in-Chief that she and the Defendant were thrown out
of Mumbai immediately after the death of the
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deceased by the Plaintiffs/Petitioners. Parvatiben
suppressed the fact that after the demise of the
deceased she stayed with the Plaintiffs/Petitioners
for five years and thereafter, after taking her
share from the Plaintiffs/Petitioners voluntarily
left for Ahmedabad to reside with her daughter
Sushila. Attention of Parvatiben in her cross-
examination was therefore drawn to a letter dated
30th May 2005 (Exhibit P-6) wherein she has stated
that she of her own free will and volition is going
to reside with her daughter Sushila at Ahmedabad.
It is further recorded in Exh. P-6 that she has
received – (i) Rs.2,50,000/- towards her share in
the Kandivali flat; (ii) fixed deposits for a sum
of Rs.1,35,000/- standing in her name; (iii) Rs.
40,000/- being the sale proceeds of the silver
utensils apportioned as her share; (iv)gold
ornaments consisting of one big necklace, two
‘patlas’, (big bangles, a bracelet) weighing about
146 grams and small necklace weighing 40 gms, which
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was her share; and (v) the amount lying in her bank
account at Borivali branch which approximately
amounted to Rs.11,000/-. In the said letter it is
also recorded that Plaintiff No.1 shall send a sum
of Rs.1,000/- every month for two years to
Parvatiben towards the monies which she had used
for Probate and medicine of the deceased. It is
further recorded that her sons shall not have any
right whatsoever over what she is taking away and
if her daughter Sushila allows her to stay with her
till her lifetime, only Sushila shall have
a right to the same. It is further recorded that
Plaintiff No.2 shall pay Rs.35,000/- to her.
Parvatiben has further agreed in the said letter
that during her lifetime her mother’s jewellery
shall remain with Plaintiff No.1 and thereafter
upon her death the same shall be distributed to her
daughters in equal share. It is further provided
that if she is required to, she can sell the
ornaments. It is further provided that the
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jewellery worn by her will remain with her during
her lifetime and she will be entitled to give the
same to anyone she desires. The said document is
inter alia signed by the Plaintiffs/Petitioners and
her daughters. The said Parvatiben has admitted
before this Court the execution as well as contents
of the said letter. The said letter and its
contents completely destroys the evidence of
Parvatiben as stated
ig in her examination-in-chief
that after the demise of the deceased she and the
Defendant were driven out of Mumbai by the
Plaintiffs/Petitioners. In view thereof, I am
satisfied that the said Parvatiben who has
admittedly not contested the said Will and has been
produced by the Defendant only as a witness has
sought to give false and incorrect evidence knowing
the same to be so which destroys her credibility as
a reliable witness and leaves the Court with no
option but to reject the same in its entirety.
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23. The Plaintiffs/Petitioners as set out
hereinabove have led evidence of both the attesting
witnesses to the said Will viz. P.W.1 and P.W.2.
P.W.1 at the time of attestation of the said Will
was the neighbour of the deceased. P.W.2 is a
qualified doctor having his dispensary in close
proximity to the residence of the deceased. Both
P.W.1 and P.W.2 have deposed that they had attested
the Will of the deceased in the year 1995 as well
as the said Will dated 11th February, 1997. Both
P.W.1 and P.W.2 have deposed that the said Will was
signed by the deceased in their presence and they
too had signed the said Will in the presence of the
deceased, as well as in the presence of each other.
Both P.W.1 and P.W.2 have also deposed that the
physical as well as the mental condition of the
deceased at the time of the execution of the Will
was sound. P.W.2 has categorically stated that the
deceased used to visit his dispensary with minor
problems like cold, fever, etc. and the Defendant
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beyond alleging that he was informed by his
mother/sister that his father was treated by one
Dr. Naik has not been able to discredit the
evidence of P.W.2 on this issue. In fact the
Defendant has not even suggested to P.W.2 that the
deceased was not a patient of P.W.2. Though the
Defendant has alleged that P.W.1 and P.W.2 have
given evidence in favour of the said Will because
they are the friends of the Plaintiffs/Petitioners,
the Defendant has not attempted to
explain/demonstrate the extent of friendship
between P.W.1, P.W.2 and the
Plaintiffs /Petitioners, but in a specific question
put to the Defendant has stated that according to
him they are friends because he has seen them
loitering together when he use to visit the
deceased and his wife at their Kandivali residence.
Admittedly, P.W.2 is a practicing doctor. It is
also not the case of the Defendant that the
Plaintiffs/Petitioners as well as P.W.1 are not
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pursuing any business/service. It is therefore
unbelievable that when the Defendant was visiting
his parents at Kandivali he use to see the
Plaintiffs/Petitioners and P.W.1 and P.W.2
“loitering” as alleged. Both P.W.1 and P.W.2 have
denied the suggestion put to them in their cross-
examination on behalf of the Defendant that they
are giving evidence in the matter because they are
the friends of the Plaintiffs/Petitioners.
ig P.W.1
has stated in his cross-examination that he knows
the Plaintiffs/Petitioners and not the Defendant.
P.W.2 has stated that he knows Plaintiff/Petitioner
No.2 who has visited him as a patient.
24. As regards the allegation of the Defendant
that despite being typed in the Will that the same
has been read over and explained to the deceased no
evidence is produced to show that the same was
actually read over and explained to the deceased, I
am of the opinion that the said contention would
have had some merit if the Defendant had positively
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established before this Court that the deceased
failed to read and understand English. Instead the
Defendant has in his cross-examination stated “I do
not know the educational qualification of my father
though I can say he was an educated man. I am not
aware whether he has studied in Gujarati or English
medium.” Therefore, it is not the case of the
Defendant who is the eldest son of his father that
his father did not know and/or understand English.
25. As regards the allegation of the Defendant
that the Will has been manipulated by the
Plaintiffs/Petitioners and the date below the
signature of the deceased is not in the handwriting
of the deceased, this Court has noted that the
Defendant in his Affidavit in Support of the Caveat
dated 3rd May 2002 which unlike his Affidavit of
Examination-in-Chief dated 20th April, 2009 is not
interpreted and explained to him in Gujarati and
the contents of which are not reiterated and
confirmed by him in his evidence, has alleged that
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“my father was paralysed since __ years and
bedridden before his death and was not able to sign
anything.” In the said Affidavit it is also
alleged by the Defendant that though he has not
seen the said Will, the said Will is false and
fabricated. Interestingly the Affidavit of
Examination-in-Chief of the Defendant dated 20th
April, 2009 does not mention that the deceased was
paralyzed or was ig bedridden before his death.
Instead it is alleged that for the last five years
prior to his death, the deceased was unable to sign
because his hands were “shivering” and he had a
“failed memory”. It would be pertinent to once
again state that on 18th July, 2009 when arguments
in the Suit commenced the Learned Advocate for the
Defendant submitted before the Court that the
Defendant is not contending that the deceased was
suffering from paralysis as stated in his Affidavit
in Support of the Caveat. Even the words “false” or
“fabricated” used in the Affidavit in Support of
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the Caveat are not found in the Affidavit of
Examination-in-chief of the Defendant but it is
alleged that there is “manipulation” on the part of
the Plaintiffs/Petitioners. P.W. 2 has
categorically stated in his examination-in-chief
that “the signature of Bapulal Contractor was put
by him in my presence and underneath he handwrote
the dated 11/2/97 in my presence.” On behalf of
the Defendant it was not even suggested to P.W.2 in
his cross-examination that the said date under the
signature of the deceased is not put by the
deceased in the presence of P.W.2. Nothing much
turns on the issue that the date in the said Will
is left blank, since underneath the signatures of
the deceased as well as P.W.1 and P.W.2 the date
11/2/97 is set out. The docket of the said Will
also bears the said date. Again, though the
Defendant in his cross-examination was asked to
produce any original signature of the deceased the
Defendant expressed his inability to do so and
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produced the membership card of the deceased of
Khar Gymkhana which admittedly does not bear the
original signature of the deceased. In any event
a bare visual inspection of the said signature on
the said card shows that the signature of the
deceased thereon is identical to the signature on
the said Will. I am therefore convinced that the
Plaintiffs/Petitioners have proved that the said
Will dated 11th February, 1997 is duly executed by
the Testator in accordance with law. In addition
to the aforesaid facts my view is also fortified by
the fact that except for the Defendant neither the
wife of the deceased or her married daughters have
challenged the said Will, instead they have given
Affidavits in support of the above Suit/Petition by
accepting the genuineness and validity of the said
Will. Even though Parvatiben withdrew the Affidavit
executed by her on 11th April, 2001 only on 18th
June, 2009 she informed the Court that she is not
desirous of contesting the said Will by filing any
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Caveat and shall only be giving evidence in the
Suit as a witness of the Defendant. The evidence
subsequently given by her is already dealt with by
me at length hereinabove. Again the Defendant
admittedly was not on good terms with his father
and there were a number of suits and counter suits
filed between them as also police complaints filed
by the Defendant and the deceased against each
other. The deceasedig has categorically made a
mention about his disputes with the Defendant in
his 1995 Will as well as the said Will and has
expressed his desire not to bequeath any of
moveable or immoveable properties to the Defendant.
The Defendant in his affidavit in support of the
caveat dated 3rd May 2002 has not contended that the
Defendant has by the said Will bequeathed joint
family properties and not his self acquired
properties. No additional affidavit in support of
the caveat is filed thereafter despite having
reserved the right to file a detailed affidavit.
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In any event the question as to whether the
testator had a right to bequeath certain
property/properties, involves a question of title
to the property/properties so bequeathed and this
Court in its testamentary jurisdiction cannot
decide the same.
26. Under the circumstances I answer the issue
framed hereinabove in the affirmative. The suit is
allowed/decreed in terms of Prayer Clause (a) of
the Plaint/Petition which reads thus :
(a) that Probate may be granted to the
Petitioners in respect of the last will
and testament dated 11th February 1997 of
the deceased Shri Bapulal Maganlal
Contractor having effect throughout the
State of Maharashtra.”
The Defendant is directed to pay the cost of this
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suit to the Plaintiffs/Petitioners as incurred by
the Plaintiffs/Petitioners.
Order accordingly.
(S. J. KATHAWALLA, J.)
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